## FINAL REPORT

Small Business Advocacy Review Panel on EPA Planned Revisions to Two Related Rules:

Worker Protection Standard for Agricultural Pesticides (RIN 2070-AJ22); and Certification of Pesticide Applicators (RIN 2070-AJ20)

November 3, 2008November 3, 2008

2 Table of Contents

1. Introduction 3
2. Background 4

2.1 Regulatory History 4

2.2 Description and Scope of Existing Rules 5

2.3 Related Federal Rules 8

3. Overview of Revisions under Consideration 8
4. Applicable Small Entity Definitions 11
5. Small Entities That May Be Subject to the Proposed Regulations 11
6. Summary of Small Entity Outreach 15
7. List of Small Entity Representatives 17
8. Summary of Comments from Small Entity Representatives 19

8.1 Number and Types of Small Entities Affected 24
8.2 Potential Reporting, Record Keeping, and Compliance Requirements 24

8.3 Related Federal Rules 24
8.4 Regulatory Flexibility Alternatives 24
9. Panel Findings and Discussion 25

9.1 Number and Types of Small Entities Affected 25
9.2 Potential Reporting, Record Keeping, and Compliance Requirements 25

9.3 Related Federal Rules 26
9.4 Regulatory Flexibility Alternatives 26

Appendix A: List of Materials the SBAR Panel Shared with Small Entity Representatives

Appendix B: Written Comments Submitted by Small Entity RepresentativesNovember 3, 2008

3 1. INTRODUCTION

This final report is presented by the Small Bu siness Advocacy Review Panel (SBAR Panel or Panel) convened to consider th e proposed rulemaking on revisions to two related rules: the Worker Protection Standard for Agricultural Pe sticides (RIN 2070-AJ22) and Certification of Pesticide Applicators (RIN 2070-AJ20). Possible revisions are currently being developed by the U.S. Environmental Protection Agency (EPA or the Agency). Under section 609(b) of the Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), a Panel must be convened prior to public ation of the initial regulatory flexibility analysis (IRFA) that an Ag ency may be required to prepare under the RFA. In addition to EPA’s Small Business Advocacy Ch airperson and the Director of the Field and External Affairs Division of the EPA Office of Pesticide Programs, the Panel members are the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB), and the Chief Counsel for Advocacy of the Small Business Administration (SBA).

This report includes the following:

• Background information on the prop osed rules being developed;

• An overview of regulatory re visions under consideration;

• Information on the types of small entities th at would be subject to the proposed rule;

• A description of efforts made to obt ain the advice and recommendations of representatives of those small entities;

• A summary of the small entity comments submitted to the SBAR Panel; and

• Panel recommendations.

Section 609(b) of the RFA directs the Panel to report on the comments of Small Entity Representatives (SERs) and make findings on issu es related to certain elements of an IRFA under section 603 of the RFA. Those elements of an IRFA are:

• A description of, and where feas ible, an estimate of the number of small entities to which the proposed rule may apply;

• Projected reporting, record k eeping, and other compliance re quirements of the proposed rule, including an estimate of the classes of small entities which may be subject to the requirements and the type of professional skills necessary for prepara tion of the report or record;

• An identification, to the extent practicable, of all other rele vant Federal rules which may duplicate, overlap, or conflict with the proposed rule; and

• Any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimi ze any significant economic impact of the proposed rule on small entities.

The Panel’s final report is provi ded to the EPA for consideration in developing the proposed rule and should be included in the rulemaking recor d. In light of the Panel report, and where appropriate, the Agency should al so consider whether changes ar e needed to the IRFA for the proposed rule or the decision on wh ether an IRFA is required.November 3, 2008

4 The Panel’s findings and discussi on are based on the information av ailable at the time the final Panel report was drafted. EPA will continue to conduct analyses relevant to the proposed rule, and additional information may be developed or obtained during the re mainder of the rule development process. The Panel makes this fi nal report at a preliminary stage of rule development and the Agency should consider the repor t in that light. At the same time, the report provides the Panel and the Agency with an opport unity to identify and expl ore potential ways of shaping the proposed rule to minimize the burden of the rule on small entities while achieving the rule’s purposes.

Any options identified by the Panel for reducing the rule’s potential regulatory impact on small entities may require further analysis and/or da ta collection to ensure that the options are practicable, enforceable, environmentally sound, a nd consistent with the Federal Insecticide, Fungicide, and Rodenticide Act (F IFRA) and its amendments.

2. BACKGROUND

2.1 Regulatory History

The two regulations being considered for change are described below. The proposed changes to the two rules are being developed concurrently.

2.1.1 The Agricultural Worker Protection Standard (WPS)

In 1974, EPA promulgated the Agricultural Wo rker Protection Standard (WPS) rule in 40 CFR Part 170, based on the 1972 amendments to the Fe deral Insecticide, Fungi cide, and Rodenticide Act (FIFRA). In that rule, four basic requi rements to protect farm workers performing hand labor activities were established:

 A prohibition against sprayi ng workers and other persons

 A general reentry interval for all agricultura l pesticides prohibiting reentry into treated fields until the spray had dr ied or the dust had settled and longer intervals for 12 specific pesticides

 A requirement for protective clothing for any worker who had to reenter treated fields before the specific reentry period had expired

 A requirement for "appropriate and timely" warnings.

In 1983, an Agency review of the existing stan dards concluded that the regulations were inadequate to protect these workers. A public participation process wa s initiated in 1985, but representatives of farm worker unions ended their participati on. Despite this, EPA issued a proposed rulemaking in July 1988 that proposed e xpanding the scope of coverage to pesticide handlers and others working on agricultural es tablishments, among other enhancements. A series of public meetings was held to inform the affected communities about the proposal. Comments in response to the proposal were considered and addre ssed, and the proposedNovember 3, 2008

5 requirements were substantially revised when the final rule was issued in August 1992, becoming effective in 1995. This regulation was intended to:

 Eliminate or reduce exposure to pesticides

 Mitigate exposures that do occur

 Inform employees about th e hazards of pesticides

After the 1995 implementation, the Agency initia ted a program assessment based on issues brought forward by stakeholders, by a pla nned program evaluation, the Government Accountability Office (GAO) and Children’s Health Protection Advisory Committee (CHPAC). This national assessment process included mee tings in the major agricultural areas with significant production and labor, a nd the establishment of workgr oups to address the issues.

A number of issues were raised through the national assessment process. Our State and extension partners have been involved with the regula tions’ development through regular meetings and a workshop program. In 2006 and 2007, the initial set of proposed rule cha nges was shared with the Pesticide Program Dialogue Committee (PPDC) , a stakeholder committee under the Federal Advisory Committee Act (FACA) which provi des input to the Pesticide Program.

2.1.2 The Certification of Pesticide Applicators

The Certification of Pesticide Applicators rule has been largely unchanged since promulgation in 1974 and 1975 (40 CFR Part 171). In 1985, a ta skforce consisting of federal agencies, agricultural trade associations and farm worker advocates was appointed by EPA to review the program and policies to identify areas for improvem ent. In August of that year, the taskforce provided a report to EPA. Based in part on that report, EPA propos ed changes to the regulations in 1990, but the proposed changes were never made final. In 1996, OPP established the Certification and Training Assessment Group (CT AG) to define the national direction of the pesticide applicator certifica tion and training program. This group consisting of EPA, state regulatory agencies and university agricu ltural extension, has made a number of recommendations to improve the program. So me of these recommendations can only be addressed through a re gulatory change.

As described above, our State lead agencies and university agricu ltural extension partners have been involved with the Certification regula tion development through regular meetings and workshops. In 2006 and 2007, the initial set of proposals was shared with the PPDC.

2.2 Description and Scope of the Existing Rules

2.2.1 The Agricultural Worker Protection Standard (WPS)

In 1992, EPA issued the current WPS regulatio ns governing the protection of employees on farms, forests, nurseries, and gr eenhouses from occupational exposure to agricultural pesticides (40 CFR Part 170). The regulati ons are designed to protect agri cultural workers and pesticide handlers who are occupationally exposed to pest icides. The regulations contain exposureNovember 3, 2008

6 reduction measures to reduce the risk of pesticide poisonings and injuries among agricultural workers and pesticide handlers.

Basic elements of these regulations include:

- Protection during applications : Applicators are prohibited from applying a pesticide in a way that will expose workers or other pers ons. Workers are excluded from areas while pesticides are being applied.

- Restricted-entry intervals : Restricted-entry intervals must be specified on all plant agriculture pesticide product labels. Workers ar e excluded from entering a pesticide treated area during the restricted-e ntry interval, with only narrow exceptions.

- Personal protective equipment : Personal protective equipm ent must be provided and maintained for handlers and early-entry workers.

- Notification of workers : Workers must be notified about treated areas so that they may avoid inadvertent exposures.

- Decontamination supplies : Handlers and workers must have an ample supply of water, soap and towels for routine washing and emergency decontamination.

- Emergency assistance : Transportation must be made available to a medical care facility if a worker or handler may have been poisoned or injure d. Information must be provided about the pesticide to which the person may have been exposed.

- Pesticide safety training and safety posters : Training is require d for all workers and handlers, and a pesticide safety poster must be displayed.

- Access to labeling and site specific information : Handlers and workers must be informed of pesticide label requirements. Cent ral posting of recent pes ticide applications is required.

2.2.2 The Certification of Pesticide Applicators

Certain pesticide products may cause unreasonable adverse effects on human health and/or the environment if used in a manner inconsistent with their labeling. To addr ess this risk, EPA may limit their availability and app lication through designation as Re stricted Use Products. Only persons holding valid pesticide applicator cert ification may purchase and use these products, with limited exceptions. Standards established by regulation by EPA are used by the States to develop ways to gauge the competency of candida te applicators. The Applicator Certification rule seeks to protect public hea lth and the environment, including applicators, from potential adverse risks of these products.

Definitions and basic elements of this regulation include:November 3, 2008

7 - Private applicator : A private applicator uses or s upervises the use of restricted use pesticides for the purpose of producing an agri cultural commodity on property owned or rented by him or his employer or, if applied without co mpensation other than th e trading of personal services between producers of agricultural co mmodities, on the property of another person.

- Standards for certification of private applicators : Private applicators must show a practical knowledge of pest prob lems and control practices associated with their agricultural operations; proper storage, use, handling and dis posal of pesticides a nd containers; and legal responsibility. This knowledge must include th e ability to recognize co mmon pests and damage caused by them; read and understand label and labeling; apply pesticides according to label instructions and warnings; recognize local envi ronmental situations to be considered during application to avoid contamination; recognize po isoning symptoms and procedures to follow in case of a pesticide accident. Competence of pr ivate applicators shall be verified through a certification system administered by the responsible state, territorial or tribal agency. The state, territory or tribe may use a writte n or oral test, or an equivalent system approved by EPA in their plan.

- Commercial applicator : A commercial applicator us es or supervises the use of restricted use pesticides for any purpose or on any property other th an as provided by the definition of “private applicator.”

- Standards for certification of commercial applicators : Commercial applicators must demonstrate practical knowledge of the principles and practices of pest co ntrol and the safe use of pesticides. Competence shall be determined on the basis of a written exam and, as appropriate, performance testing in the follo wing areas: label and labeling comprehension, safety, environment, pests, pesticides, equi pment, application techniques, and laws and regulations. In addition, tests shall be given on the particular category of the applicator’s certification.

- Categories of commercial applicator certification : States, territories and tribes are required to adopt the following pe st control categories to the exte nt they will be used in that State, territory, or tribe: agricultural (plant and animal); forest; ornamental and turf; seed treatment; aquatic; right-of-way; in dustrial, institutiona l, structural and h ealth related; public health; regulatory; demonstration and research. A state, territor y or tribe may submit a plan to EPA requesting approval to a dd or delete categories.

- Continuing level of competency : All states, territories a nd tribes must ensure that certified applicators maintain a continuing level of competency. Generall y, this involves training and recertification every three to five years.November 3, 2008

8 2.3 Related Federal Rules

2.3.1 The Agricultural Worker Protection Standard (WPS)

The Occupational Safety and Health Administra tion’s (OSHA) Hazard Communications Standard (HCS) is the main federal regulation designed to protect employees from chemical hazards in the workplace. In industries where chemicals are comm only used, OSHA has established that employees have a right to know about the chemical hazards in their workplace so they can make informed decisions about their work prac tices and protect themselves.

The HCS technically applies to the agricultural industry, but in practice it is enforced on a limited number of agricultural establishments because OSHA is prohibited from enforcing it on farms with 10 or fewer employees unless the farm has a temporary labor camp.

EPA has established requirements to protect agri cultural pesticide workers exposed to pesticides under the WPS that are essentially equivalent to the HCS; therefore, OSHA established a policy agreeing not to cite employers who are covered under EPA's final WPS rule with regard to HCS requirements for pesticide hazards. Employers on OSHA covered agricu ltural establishments remain responsible for co mpliance with the HCS for other non-pesticide chemical hazards, as well as other OSHA standards for agriculture at 29 CFR part 1928, such as the Field Sanitation Standard (29 CFR § 1928.110).

2.3.2 The Certification of Pesticide Applicators

OSHA provides Hazard Communica tions requirements coverage for the employees using nonrestricted use pesticides and in industries othe r than agriculture (where they are covered under the WPS). However, OSHA defers to EPA for requirements for employees who use restricted use products, such as certif ied pesticide applicators.

3. OVERVIEW OF REVISIONS UNDER CONSIDERATION

Through Agency deliberations and stakeholder in put, a broad range of program improvements have been suggested. From these EPA identifie d those which could only be addressed through a regulation change, and further limited to those whic h would provide the most protective impact. The following is a listing of regulatory revisions currently being consid ered and evaluated by EPA and were presented to the SERs for their reac tion. This listing is not intended to limit the Agency’s consideration during th e development of the proposed rule. These potential revisions for proposal are organized by type of improvement within each rule.

3.1 Worker Protection Standard for Agricultural Pesticides

• Improve effectiveness of worker and handler training:

– Reduce retraining interval

– Expand training contents

– Eliminate grace period before full worker trainingNovember 3, 2008

9 – Improved worker trainer competency

– Establish training recordkeeping by employers

• Improve protections to workers durin g Restricted Entry Intervals (REI):

– Ag employer provide notifica tions to workers when dire cting early entry (during REI) to a treated area

• Oral and written notifications

• Limit duration of early entry during agricultural emergency

• Keep records of workers in a treated area during the REI

– Post warning signs at treated area for a ny pesticide applicatio n that has an REI

– Improve content of warning signs fo r posting at treated areas during REI

• Improve protections for workers during pesticide applications:

– Add requirement for applicati on entry restricted areas for farms/forests similar to those in place for nurseries and greenhouses

• Improve hazard communication protections:

– Expanded information on application and hazard to be available

– Specify when application information mu st be recorded and retention period

– Require handler employer (commercial applicators) to notify agricultural employer of any changes in applica tion within specified time period

• Improve effectiveness of safety poster:

– Expand poster content to match expanded training points

– Add requirement for poster at decontamination supply location

• Improve protections for employees of Certified Crop Advisors:

– Require personal protective equipment (PPE) for entry during REI

– Provide decontamination supplies

• Improve effectiveness of decontamination supplies:

– Improve eyeflush water supply requ irements for workers and handlers

– Increase amount of water availabl e to handlers at mix/load site

– Require shower and changing area for all handlers

• Improve effectiveness of emergency information:

– Specify information to be provide d and time allowed to provide it

• Improve handler application restrictions

– Require handlers to cease application if workers enter restricted area around treated area

– Improve protections from cholinesterase inhibition to handlers by restricting amount of time per month they may apply organophosphate and carbamate products or by cholinesterase monitori ng for those who apply organophosphates and carbamatesNovember 3, 2008

10 • Improve effectiveness of Person al Protective Equipment (PPE):

– Require that handler either use PPE or approved closed systems with specified standards

– Eliminate substitution of an enclosed cab for labeled respirator requirement

– Require maintenance of enclosed cabs a nd closed systems, with record-keeping

– Require medical monitoring and fit testi ng for all handlers who use respirators

3.2 Certification of Pesticide Applicators

• Add commercial applicator categories and sub-categories to ensure specific competency for potentially high-risk scenarios:

– Aerial application

– Fumigation

– Chemigation

– M-44 and Compound 1080

• Ensure competency of commercial applicators:

– Establish minimum age for commercial applicators

– Establish requirements for administrati on of commercial applicator exams

• Written

• Proctored

• Closed-book

• Positive identification

– Standardize and better define re-certification requirements

• Ensure competency of private applicators:

– Establish minimum age for private applicators

– Establish requirements for administra tion of private applicator exams

• Written

• Proctored

• Closed-book

• Positive identification

– Amend competency standard to be more comparable to commercial applicator standard

– Standardize and better define recertification requirements

• Ensure competency of non-certified applicat ors applying Restricted Use Pesticides (RUP) under the supervision of a certified applicator:

– Define and develop the following requireme nts regarding applicator competency for certified applicator and t hose applying under the supervision

• Appropriately trained

• Maintain records of training

• Copy of label provided to & carried by applicator

• Means of instant communication be tween applicator & supervising certified applicatorNovember 3, 2008

11 – Require minimum age for appl icator under the supervision

4. APPLICABLE SMALL ENTITY DEFINITIONS

The Regulatory Flexibility Act (RFA) defines sm all entities as including “small businesses,” “small government jurisdictions,” and “small organizations” (5 USC 601). The regulatory revisions being considered by EPA for these two ru lemakings are expected to affect a variety of small businesses, but would not affect any small government jurisdictions or small organizations. The RFA references the definition of “small business” found in the Small Business Act, which authorizes the Small Business Administration to further define “small business” by regulation. The SBA defines small business by size stan dards using the North American Industry Classification System (NAICS) (13 CFR 121.201).

The detailed listing of SBA definitions of small business for affected industries or sectors, by NAICS code, is included in Tables 1 and 2 in Section 5, below.

5. SMALL ENTITIES THAT MAY BE SUBJ ECT TO THE PROPOSED REGULATION

The following tables list industries/sectors poten tially affected by the two regulations. The EPA name for each industry/sector is generally th e terminology used in the current regulations, followed by the corresponding NAICS name and code. The estimated number of small firms within each NAICS code, and the number of employees in those small firms, is also presented.



### Table 1: Industry Sectors, Definitions & Number of Small Entities Potentially Affected by Proposed Amendments to the Worker Protection Standard

Small Farms/Firms EPA Name for Industry/Sector 2002 NAICS Name for Industry/Sector 2002 NAICS

Code SBA Definition for Small Business Number Employees Agricultural Establishment / Farm Crop Production 111000 (not 111421) < $750,000 annual gross

revenue 887,297 1,074,932

Agricultural Establishment /

Nurseries & Greenhouses Nursery and Tree Production 111421 < $750,000 annual gross

revenue 59,452 154,788

Agricultural Establishment / Forest Timber tract operations 113110 < $7.0 million annual gross

revenue 528 1,753

Agricultural Establishment / Forest nurseries Forest Nurseries and Gathering Products 113210 < $7.0 million annual gross

revenue 1,153 5,164November 3, 2008

12 Small Farms/Firms EPA Name for Industry/Sector 2002 NAICS Name for Industry/Sector 2002 NAICS

Code SBA Definition for Small Business Number Employees Commercial

Pesticide Handling (Forestry) Support Actives for Forestry 115310 < $7.0 million annual gross

revenue 63 280

Commercial

Pesticide Handling (Farms

- Ground and aerial) Soil Preparation, Planting, and

Cultivating 115112 < $7.0 million annual gross

revenue 4,634 19,144

Crop Advisor Entomological service, agricultural

Agricultural consultants and Entomological

consultants

Agricultural research and

Chemical laboratory, except testing Part of 115112

Part of 541690

Part of 541710 < $7.0 million annual gross

revenue

< $7.0 million

annual gross

revenue

< 500 employees 2,625 12,476

Farm Labor Contractors Farm Labor Contractors and

Crew Leaders 115115 < $7.0 million annual gross

revenue 654 6,946



### Table 2: Industry Sectors, Definitions & Number of Small Entities Potentially Affected by Proposed Certification of Pesticide Applicators Amendments

Small Farms/Firms EPA Name for Industry/Sector 2002 NAICS Name for Industry/Sector 2002 NAICS

Code SBA Definition for Small Business Number Employees Firms Employing Commercial Applicators Agricultural pest

control/animal Support Activities for Animal Production 115210 < $7.0 million annual gross

revenue 3,891 11,632November 3, 2008

13 Small Farms/Firms EPA Name for Industry/Sector 2002 NAICS Name for Industry/Sector 2002 NAICS

Code SBA Definition for Small Business Number Employees Agricultural pest

control/plant 1 (aerial and ground application) Soil Preparation, Planting, and Cultivating (only aerial and ground application sectors) 115112 < $7.0 million annual gross

revenue 4,634 19,144

Forest Pest

Control (Forests, forest nurseries, & forest seed) Support Activities for Forestry 115310 < $7.0 million annual gross

revenue 63 280

Ornamental & Turf Pest Control

(trees, shrubs, flowers, grass) Landscaping Services (only applicable pest control sectors and not right-of-way) 561730 < $7.0 million annual gross

revenue 59,893 186,549

Right-Of-Way

Pest Control LandscapingServices (right-ofway pest control only) 561730 < $7.0 million annual gross

revenue 1,464 8,069

Industrial, institutional, structural & health related pest control (Pest Control

Operator) Exterminating and Pest Control

Services 561710 < $7.0 million annual gross

revenue 20,584 87,392

Industrial, institutional, structural & health related pest control (Wood Preservation) Wood Preservation 321114 < 500 employees 568 10,726

Research & Demonstration (includes some crop advisors) Research & Demonstration in physical engineering & life sciences 541710 < 500 employees 635 6,484

1 Same as WPS “Commercial Pesticide Handling,” but us ing terminology found in Certification regulations.November 3, 2008

14 Small Farms/Firms EPA Name for Industry/Sector 2002 NAICS Name for Industry/Sector 2002 NAICS

Code SBA Definition for Small Business Number Employees Firms Employing Private Applicators Agricultural Producers / Farms / plant Crop Production 111000 (not 111421) < $750,000 annual gross

revenue 887,297 1,074,932

Agricultural Producers / nurseries & greenhouses Nursery and Tree Production 111421 < $750,000 annual gross

revenue 59,452 154,788

Agricultural Producers / Farms

/ animal / cattle feedlots Cattle Feedlots 112112 < $2.5 million annual gross

revenue 53,173 37,344

Agricultural Producers / Farms / animal / all other Animal Production 112000 (not 112112) < $750,000 annual gross

revenue 1,041,922 676,843

Agricultural Producers / Forests / logging Logging 113310 < 500 employees 9,710 51,691

Agricultural Producers / Forests / other Timber Tract Operations

Forest Nurseries and Gathering of Forest Products 113110

113210 < $7.0 million annual gross

revenue 1,681 6,917

Other

Pesticide Registrants a Pesticide and other agricultural

chemical manufacturing 325320 and various others < 500 employees (for 325320) 1,658 64,662

Notes:

a Based on the profile of pesticide registrants prepared for the “container rule”. See Appendix D of “Economic Analysis of the Bulk Pesticide Container Design and Residue Removal Standards,” July 20 2005.November 3, 2008

15 6. SUMMARY OF SMALL ENTITY OUTREACH

6.1 Small Entity Outreach

EPA has been conducting outreach to the enti re stakeholder community, including small businesses, for a number of years. This outreach has included presentations and workshops such

as:

• Public meetings were held in 1999 on the Worker Protection Standard in Texas, California, Florida, and Virginia to evalua te the regulation and the implementation and enforcement of the national program. Represen tatives from grower groups, farm worker advocates, state lead agencies for pe sticide regulation, et c., participated.

• In 1997, the Certification and Training Asse ssment Group (CTAG) was formed of state lead agency and agricultural extension representatives to assess the Applicator Certification Program.

• A workgroup from the Pesticide Program Dialogue Committee (PPDC) has reviewed preliminary options for both rules and provided data, recommendations for change, and comments. The PPDC is an advisory committ ee to EPA’s Office of Pesticide Programs, with membership including stakeholders with diverse interests in the benefits and risks associated with pesticides.

• State Lead Agencies have reviewed prelim inary options for both rules and provided
comments.

6.2 Summary of EPA’s Outreach Meetin g with Potential Small Entity Representatives

In January 2008, EPA began an informal out reach process to potential Small Entity Representatives (SERs) as part of the pre-SBAR panel planning pr ocess. EPA contacted States, agricultural extensi on agents, and organizations known to represent effect ed small business, such as grower associations, and various pest control industry associations, to ask them to submit the names of potential SERs. EPA looked for repr esentatives from differing types of business involved in pesticide application and/or different crops or agricultural commodities. EPA also sought to have representatives from a num ber of geographic areas of the nation.

On February 12, 2008, EPA sent an e-mail to the 16 potential SERs identified by that point and provided two Fact Sheets as background for the pro cess they were being as ked to participate in:

• What Small Entities Should Know About the Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Act

• What Potential Small Entity Representatives Should Know About the Small Business Advocacy Review Panel Process The e-mail also explained background concerning the two rules that are the subject of this Panel, and asked to confirm interest in participating as a SER. Four more potential SERs were later identified, for a total of 20, and th e materials were sent to them.November 3, 2008

16 EPA conducted a pre-panel meeting/teleconfer ence with potential SERs on June 30, 2008, as background and preparation for the upcoming Sm all Business Advocacy Review (SBAR) Panel meetings and process. To help potential SERs prepare for the June 30 pre-panel meeting/teleconference, EPA sent materials to ea ch of the potential SERs via email on June 16. A list of all materials shared with the potential SERs before the pre-panel outreach meeting is contained in Appendix A. SBAR Panel member s from the Office of Advocacy of the Small Business Administration and the Office of Inform ation and Regulatory Affa irs within the Office of Management and Budget also attended the Ju ne 30 meeting. A total of 12 potential SERs participated in the meeting. EPA presented an over view of the SBAR proce ss, an overview of the existing regulations, an explanation of the plan ned rulemaking and proposals being considered, and technical background.

This outreach meeting was held to provide b ackground to the potential SERs on the existing rules, familiarize them with proposals under consideration, and to solicit their comments. EPA provided a list of questions for SERs and as ked for comments on potential proposals under consideration, including alternat ive proposals. The Agency received written comments from seven potential SERS. Those written comments are in Appendix B. Section 8 of this document contains a summary of written comments r eceived along with oral comments noted at the meeting.

6.3 Summary of SBAR Panel’s Outreach Meet ing with Small Entity Representatives

The SBAR Panel convened on September 4, 2008. The Panel decided to add one additional SER, for a total of 21 (see list in Section 7), prio r to the Panel meeting with the SERs. The Panel held a formal panel outreach meeting/tel econference with SERs on September 25, 2008. Two weeks before the panel outreach meeting EPA sent materials to each of the SERs via email. A list of all materials shared with the SERs befo re the panel outreach meeting is contained in Appendix A.

Information presented at the meeting included:

• Guidance for SERs

• Introduction to Pesticide Worker Safety program

• Background and regulatory history, includi ng overview of ex isting regulations

• Rationale for revising these regulations

• Overview of proposals under consideration

• Regulatory flexibility options for small entities

• Industry sectors, definitions and number of sm all entities potentially affected by proposed regulations

• List of SERs

• List of questions for consideration by SERs

This outreach meeting was held to solicit feedback from the SERs on their suggestions for the upcoming rulemakings. EPA asked that the SERs provide feedback on id eas under consideration for the proposed rulemakings and responses to questions regarding their experience with the requirements of the two existing regulations. Specifically, they were asked to provide anyNovember 3, 2008

17 alternate solutions to the potential proposals pr esented that provide flexibility, or decrease economic impact, for small entities while still accomplishing the goal of improved safety. The Agency received written comments from eight SERS (see Appendix B). Section 8 of this document contains a summary of writ ten and oral comments received.

7. LIST OF SMALL ENTITY REPRESENTATIVES (SERs)

The twenty potential SERs who participated in the pre-panel outreach activities in the summer of 2008, plus a representative of the American Fa rm Bureau Federation ad ded prior to convening the SBAR Panel, were selected as SERs for the official Panel process and are listed in Table 3.

Table 3. List of Small Entity Representatives

Name Industry/Sector Business Name & Address E-mail Address

Cline, Ron Aerial applicator Cline Air Services, LLC/dba: Central Valley Helicopters 891 Prater Road Ellensburg, WA 98926 cvh@centralvalleyheli.com

Reed, Rick Aerial applicator Reed's Fly-On Farming 490 Airport Rd. Mattoon, IL 61938 reedfly@aol.com

Hester, John Agricultural ground applicator Nichols Agriservice L.L.C. 1783 Davis Ave. Box A Nichols, IA 52766 jhester@nicholsag.com

Hunt, Bill Crop advisor Bill Hunt Company, LLC 14400 SW 149 Terrace Miami, FL 33186 bilihun@spraytec.com

Averitt, Al Crop advisor Protech Advisory Services Inc. 955 Sandy Grove Road Lumber Bridge, NC 28357 aaveritt@earthlink.net

Berglund, Dennis Crop advisor Centrol Crop Consulting Box 367, 102 East Main Ave Twin Valley, MN 56584 dennisb@tvutel.com

Femling, Frank Farm / apple Afton Apple Orchard 9225 St Croix Trail S Hastings, MN 55033 cfemling@aol.com

Elmstrand, Rod Farm / berry Rod's Berry Farm 28624 Zodiac St NE North Branch, MN 55056 elmst002@umn.eduNovember 3, 2008

18 Name Industry/Sector Business Name & Address E-mail Address

Webb, Clint J. Farm / cotton Webb Farms 6430 Dixie-Barwick Rd. Boston, GA 31622 webbfarm@netzero.net

Matoian, Richard Farm / grape Matoian Brothers 1383 East Valley Forge Fresno, CA 93720 rmatoian@westernpistachio.org

Dasher, Randall Farm / peanuts, seeds, & herbs Dasher Farm 5195 180th Street McAlpin, FL 32062 dasherfarm@alltel.net

Metzler, Ryan Farm / tree fruit Fruita Del Sol 5026 E Townsend Fresno CA 93727 rmetzler@pearsonrealty.com

Jordan, Bill, Jr. Farm / vegetable William H. Jordan Farm LLC 21 Wells Road Cape Elizabeth, ME 04107 whjjr30@aol.com

Wegmeyer, Tyler Farm / trade association American Farm Bureau Federation Washington, DC tylerw@fb.org

Bare, Dick Landscape maintenance Arbor-Nomics Turf, Inc, 800 Langford Dr., Suite A, Norcross, GA 30071 richard@arbor-nomics.com

Crenshaw, Kenny Landscape maintenance Herbi-Systems, Inc. 7551 Bartlett Corp. Cove East Bartlett, TN 38133 kcrenshaw@herbi-systems.com

Alonso, Lonnie Structural pest control Columbus Pest Control, Inc. 1510 West Broad St. Columbus, OH 43222 lonniealonso@ColumbusPestCo ntrolinc.com

Bookout, Anne Structural pest control Royal Fumigation Inc. 53 McCullough Drive New Castle, DE 19720 anne@royalpest.com

Carter, Bruce Structural pest control Carter Services, Inc. PO Box 342 Farmington, NM 87499 bruce@csipest.com

Marlowe, Jack Structural pest control Eden Advanced Pest Technologies 3425 Stoll Rd SE Olympia, WA 98501 jackmarlowe@edenpest.comNovember 3, 2008

19 Name Industry/Sector Business Name & Address E-mail Address

Wright, Morgan Wood treatment Wood Preservers, Inc. PO Box 158 Warsaw, VA 22572 mwright@woodpreservers.com

8. SUMMARY OF COMMENTS FROM SM ALL ENTITY REPRESENTATIVES

The summary of SER comments on major issues for the two rules unde r consideration are presented below, in Tables 4 and 5. Major issues were identified using the quantity and substantive content provided in the comments received. The Panel decided to focus their discussion and recommendations on the potential pr oposals that were the major issues for the SERs, based on their verbal and written comments.

A brief discussion of SER comments with resp ect to elements of the Initial Regulatory Flexibility Analysis appears in sections 8.1 through 8.4. The full written SER comments received after both the Pre-panel and Panel mee tings with them are included in Appendix B.

As described in Section 6 above, EPA and the SBAR Panel conducted outreach to potential SERs and official SERs by sending outreach packages a nd conducting outreach meetings (teleconferences) with them on June 30, 2008 and September 25, 2008. In addition to the oral comments that the SERs made during the outre ach meetings, the Panel received written comments from a total of seven potential SERs during the pre-Panel outreach and from eight SERs during the formal Panel outreach process (including two who subm itted a set of joint comments and one who re-submitted his pre-panel written comments). The written comments were distributed to all Panel members as they were received.

Because of the number of potentia l proposals considered, the various types of affected entities commenting, the number of comments received, and the variety of positions taken, the Panel believes that a tabular summary of SER commen ts best serves the reader. SER comment summary tables were prepared that briefly paraphrase SER comments from both the pre-Panel and Panel outreach processes (both oral comm ents at the meetings and written comments received) without repeating the same comment from the same commenter. The comment summary tables are organized with a row for each issue/potential proposal, and columns for general comments, time and cost related comm ents, and alternate proposals suggested by the SERs. Readers may want to refer to chap ter 3 and the “Questions for Small Entity Representatives” in Appendix A for additional de tail on issues and poten tial proposals to which the comments refer.Table 4 Worker Protection Standard (WPS) Summary of SER Written and Oral Comments on Major Issues Received in Response to SBAR Pre-Panel and Panel Outreach Meetings

WPS Issue/Potential proposal General Comments (commenter type) Time or Cost ($) Related Comment (commenter type) Alternate Proposals (commenter type)
Restricted Entry Interval /Field Posting: Require All Treated Areas to be Posted  Time consuming and difficult. Too expensive to orally notify and post all applications. (Farm)

 Supports mandatory posting only for Restricted Use Products. Posting should be at usual points of entry to field. (Farm)

 Posting only for products requiring both oral and written notification. Workers read labels, so know Restricted Entry Intervals. Can refer to WPS. Retain central posting. (AFBF)

 Many fields are irregular in shape, therefore, no corners. Posting is burdensome. (Aerial)

 Numerous small fields of different crops makes posting difficult (Farm)  Up to 1 hour per application to orally notify and post. (Farm)

 Costly, time consuming and difficult to enforce. Should only require points of entry, not four corners (Ag custom applicator)

 Posting all fields could increase cost to about one hour per day effort and a $25 per day cost. Small farms would have higher costs than large because field size is smaller (thus more fields to post). More signs per acre on small than on large farms (Farm)

 Impractical to post corners of field; Leads to loss of productivity; Time consuming to post (e.g., hammering stake in ground, attaching sign to stake). (Aerial)

 Would take an employee out of other productive work (AFBF)

 Estimate 30 minutes to post a single reusable sign at point of entry. Would take at least one hour to post four corners. Some growers have many fields resulting in a heavy posting burden. (Crop advisor)

 EPA estimate of 15 minutes to post a field is too low. (Aerial)  Central map with field marked by flags and requirement for daily worker check in. Or exempt small farms, if all workers are certified and notified at time of application. (Farm)

 Posting should be for Restricted Use Products only, and at each possible entry point and each corner. (Farm)

 Farms with less than 10 non-family employees should not be required to post, just verbal notifications. (Farm)

 Farms with fewer employees could orally notify rather than by posting. Perhaps institute worker sign off for oral notification. (Farm)

 Consider an exception to field posting for farms with a few employees. Oral notification with central posting is sufficient. (AFBF)

WPS Training/ Retraining Interval: Require More Often than 5 Years  Everyone retrains every year because can’t verify previous training and turnover. (Farm)

 Retain 5-year interval. (Farm)

 Retain 5-year interval. (Aerial)  Training burden: 30 minutes for workers, 45 minutes for handler. (AFBF)

 Worker training 30-60 minutes; Handler training 45- 60 minutes. Material cost is minimal. (Crop advisor)  5 years (as is) or when newly hired. Rather than reduce interval, require documentation of training. (Farm)November 3, 2008

21 WPS Issue/Potential proposal General Comments (commenter type) Time or Cost ($) Related Comment (commenter type) Alternate Proposals (commenter type)

 Retraining interval should be same as recertification for applicators. Keep at 5 years. (Farm)

 Most workers trained annually. Retain 5 years – effective and not unusual burden. Growers do not check for training history. (AFBF)

 Train annually even if previously trained although some may not. (Crop advisor) WPS Training/ Grace period: Rescind Five Day Grace Period  Do not eliminate grace period; bad idea. Too much in first few days. (Farm)

 Need grace period for flexibility. (Farm)

 Retain 5-day grace period. (Aerial)

 Support retention of grace periods. (Ag custom applicator)

 Need to retain a grace period for flexibility around busy schedules.(Farm)

 Loss of grace period would lead to earlier hiring and more cost to grower. (AFBF)  Would necessitate earlier hiring which would lead to increased input cost by $100 -200 per hire. (AFBF)

Decontamination: Require Showers for Handlers  Major burden and employees would not use. (Farm)

 Shower is unreasonably expensive. (Farm)

 Shower not justified. (Farm)

 Unnecessary (AFBF)

 Crop advisor handlers are mobile and shower facilities would be difficult and costly to provide. (Crop advisor)

 Ag custom applicators in the Midwest have showers, but are seldom used. (Ag custom applicator)  Shower facility would cost tens of thousands of dollars. (Farm)

 Portable showers cost $5000 - $6000. Add cost of water. (AFBF)  Train handlers onminimizing takehome exposure. (Farm)

 Additional personal protective equipment for handlers /mixer/loaders (Farm)

 Protect better by requiring workers to remove early entry clothing and footwear – do not allow it to be taken home (AFBF)November 3, 2008

22 Table 5 Certification of Pesticide Applicators Summary of SER Written and Oral Comments on Major Issues Received in Response to SBREFA P re-Panel and Panel Outreach Meetings

Certification Issue/Potential proposal General Comments (commenter type) Time or Cost ($) Related Comment (commenter type) Alternate Proposals (commenter type)

Commercial Applicator Competency: Establish Minimum Age  Minimum age should not exceed 14 for commercial applicators, if pass test. (Landscape maintenance)

 Commercial applicator 18; children of farmers age 16. (Farm)

 Supports ages 16 – 18 for commercial. (Farm)

 Minimum age for pilot’s license is 18, so no impact for aerial applicator. (Aerial)

 Supports 18 as minimum age. (Structural pest control)

 One cannot understand the concept of safe and accurate application until age 18. (Ag custom applicator).

 No minimum age, just written test. (Farm)

 Supports 18 as minimum age. (Structural pest control)

 Commercial – 16 or 18 OK. (AFBF)

 Minimum for pilots makes this moot for aerial applicators. (Aerial)

Private Applicator Competency: Establish Minimum Age  Law sets minimum at age 18 for non farm. Farm children should be certified when pass test. (Farm).

 Supports 16. (Farm)

 One cannot understand the concept of safe and accurate application until age 18. (Ag custom applicator).

 No minimum, need to use family. (Landscape maintenance)

 Privates should be 15 or 16, not 12.

 Private – 16 OK.(AFBF)  Would be forced to hire certified applicators or older workers. Could delay applications, affecting yield. (Farm)

 Cost to replace lost family worker: salary, unemployment and workman’s comp taxes, loss of reliability. (AFBF)November 3, 2008

23 Certification Issue/Potential proposal General Comments (commenter type) Time or Cost ($) Related Comment (commenter type) Alternate Proposals (commenter type)
Application of Restricted Use Pesticides under the supervision of a certified applicator : Establish Minimum Age  Minimum age of 16 for an apprentice program, but not working alone. (Structural pest control)

 One cannot understand the concept of safe and accurate application until age 18. (Ag custom applicator)

 No minimum, need to use family. (Farm)  Would be forced to hire certified applicators or older workers. Could delay applications, affecting yield. (Farm).  Support training or requirement for presence of certified applicator. (Landscape maintenance)

Application of Restricted Use Pesticides under the supervision of a certified applicator: Require Communication method  Radios and cell phones are problem in some remote areas. Generally supports good communication. Insurance companies also support. (Farm)

 Supports communication method rather than on-site presence. (Farm)

 Supports requirement for instant communication. (Ag custom applicator)

 While desirable, not always possible. (Structural pest control)  Most, if not all, have twoway radios or cell phones, so no additional cost.

 For full coverage, could add several hundred if not thousands of dollars in equipment and future subscriptions (Farm)  Issues that may come up and need communication should be covered in training. (Farm)

 Should consider distance rather than communication requirement. (Farm)8.1 Number and Types of Entities Affected

Though the SBAR Panel did not r eceive specific comments on the number and types of entities that may be affected by the two rulemakings, the Panel believes that the SERs are in agreement with EPA on this matter. Tables 1 & 2 in Chap ter 5 of this report, which present the industry sectors, definitions and number of small entities potentially a ffected by the two rules, were provided to the SERs before both outreach meet ings, and were discussed at the meetings.

8.2 Potential Reporting, Recordke eping, and Compliance Requirements

See Tables 4 and 5, above, for summarie s of SER comments on potential reporting, recordkeeping, and compliance requirements for major comment generating issues (the ‘Alternate Proposals’, the ‘General Comment’ and the ‘Time or Cost Related Comment’ columns), and Appendix B for complete SER comments. Although some SERs commented on the added burden of recordkeepi ng requirements, there were also comments that suggested added recordkeeping because it would reduce other co mpliance burdens. One SER suggested requiring recordkeeping for training, as currently many em ployers train more frequently than required since they cannot determine when or if a worker has been trained. Two SERs suggested oral notification of REIs, with recordkeeping, as an alternative to posting treated areas.

8.3 Related Federal Rules

The SBAR Panel did not receive any comments from SERs on related federal rules. Section 2.3 of this report discusses related federal rules pr omulgated by the Occupational Safety and Health Administration (OSHA).

8.4 Regulatory Flexibility Alternatives

Tables 4 and 5 (‘Alternate Proposals’ column) and comments in Appendix B include regulatory flexibility alternatives raised. SERs did not offer alternatives for all poten tial proposals. Some of the alternative proposals were flexibilities for sma ll entities, while others were suggested for all affected entities. The major issue SER comm ents are discussed below for each of the two rulemakings.

8.4.1 Worker Protection Standard for Agricultural Pesticides

For the potential proposal to requi re agricultural establishments to post treated areas during a Restricted Entry Interval (R EI) following pesticide applications, SERs suggested several alternatives for small farms. Three SERs suggest ed that farms with few employees (one said less than 10 non-family employees) should be required to verbally notify employ ees of the REI rather than posting the field. One of these SERs sugge sted a worker sign off, while another suggested central posting, along with the or al notification. One SER propos ed that posting should be required for Restricted Use Pesticides only, and should be at each possi ble entry point and each corner of the field. Another SER suggested exem pting small farms from posting requirements ifNovember 3, 2008

25 all workers are certified and orally notified. Th e same commenter suggested an alternative of posting REIs on a central map, with daily worker check in, and fields marked by flags.

One SER suggested an alternativ e for the potential proposal to reduce the current five year retraining interval for workers and pesticide handlers on agricultural establishments that use pesticides. He suggested that the retraining interval not be re duced and to require documentation of training, however training would also be required when a worker is newly hired regardless of the retraining interval. This alternative appear ed to be for all farms, not just small ones.

Three SERs suggested alternatives for a potential requirement that agricu ltural establishments provide shower facilities for pesticide handlers. One SER suggested a requirement to train handlers on minimizing take-home exposure of pest icides to handlers’ family members rather than the shower requirement. Another SER suggested requiring additional PPE instead of showers. A third SER suggested better protect ion by requiring workers to remove early entry clothing and footwear and not allow it to be taken home, instead of the shower requirement.

8.4.2 Certification of Pesticide Applicators

Two SERs suggested alternative proposals fo r the potential requirement for a means of communication between a certif ied applicator and someone applying a RUP under their supervision. One SER suggested th at issues that may arise duri ng a pesticide application that may need communication should be covered in training, rather than requiring a means of communication during application. Another SER suggested that EPA consider a requirement for a maximum distance between th e certified applicator and the person applying under the supervision, rather than a communication requirement.

9. PANEL FINDINGS AND DISCUSSION

9.1 Number and Types of Entities Affected

For a complete description and estimate of the type and number of sma ll entities to which the proposed rules will apply, see Section 5. For the Worker Protection Standard, this includes primarily agricultural employers on farms, forests, nurseries and greenhouse establishments. For the Certification of Pesticide Applicators, affect ed entities include a variety of firms that apply pesticides for hire, as well as agricultural producers.

9.2 Potential Reporting, Recordkeeping, and Compliance

Both the Worker Protection Standard and the Ce rtification of Pesticide Applicators rules are enforced by state agencies, owing to FIFRA section 26, which allows the states primary enforcement responsibility for pesticide use violat ions. EPA has received considerable feedback from our state regulatory partners indicating difficulty enforci ng the rules, particularly the WPS, due primarily to a lack of records or info rmation. Reporting require ments under the WPS are entirely third party reporting. That is, employe rs provide information to their employees to enable them to protect themselves, and do not report to EPA. Reporting requirements under the Certification rule are also primarily thir d party, other than st ate reports to EPA.November 3, 2008

26 EPA would like to improve enforcement capability as a means of fostering compliance, and thereby improving protections. The improvement s that EPA is considering for the WPS may include additional or more spec ific recordkeeping and reporti ng. These potential proposals include improved requirements for posting of pesticide treated areas, training, hazard communication, and emergency information.

9.3 Related Federal Rules

The Panel is aware of regulat ions promulgated by the Occupational Safety and Health Administration’s (OSHA) to protect employees of firms affected by the WPS and Certification rules. The Hazard Communications Standard (HCS ) is the main federal regulation designed to protect employees from chemical hazards in the workplace. However, OSHA established a policy agreeing not to cite employ ers who are covered under EPA's fi nal WPS rule with regard to HCS requirements for pesticide hazards. The Field Sanitati on Standard also provides certain protections for employees in agriculture. With re spect to the Certificatio n rule, OSHA defers to EPA for requirements for employees who use restricted use pesticides.

The proposed rules are being deve loped and considered within the context of the OSHA rules and current coordination between the agencies. Entiti es affected by the WPS a nd Certification rules will also need to consider OSHA’s regulatory requir ements for protection of employees, particularly with respect to non-pesticide hazards.

9.4 Regulatory Flexibility Alternatives

As described above, EPA is seeking to improve the standards for protection of agricultural workers from pesticide exposure and for the cer tification of applicator s of restricted use pesticides. Because of the potential burdens a nd costs of meeting these standards, the Panel recommends that EPA consider a nd seek comments on the flexibil ity options described below. As one SER commented generally about compliance with the rules, flexib ility is key for small entities. The Panel believes that the following flex ibility options collectively have the potential to significantly reduce compliance burden without significantly compromising intended protections for human health and the environment.

9.4.1 Field Posting for Rest ricted Entry Intervals

Restricted-entry interv als (REI) must be specified on WPS- covered pesticide product labels. Workers are excluded from entering a pesticide treated area during the REI, with only narrow exceptions. EPA is considering a pr oposal to require agricultural establishments to post treated areas during a REI following pesticide applica tions, to warn workers of the existence and duration of the REI and to stay out. Several SERs raised concerns about the number and placement of signs. Based on those comments, the Panel recommends that EPA consid er a requirement for po sting at routine or usual points of entry to th e field or treated area.

Several SERs commented that the burden for num erous posting events could be high. The Panel believes that oral notification of workers is an acceptable substitute for posting for REIs ofNovember 3, 2008

27 shorter duration (e.g., 48 hours or less), as worker s can more easily remember the notice for a shorter period. Therefore, the Panel recommends that EPA consider the flexibility to permit only oral notification for those pesticide applications with REIs of 48 hours or less.

9.4.2 Re-training Interval for Workers and Handlers

The current WPS requires that workers and pestic ide handlers receive pe sticide safety training, and that they be re-trained at least every 5 years. EPA is c onsidering a requirement for more frequent re-training, possibly annually.

A few SERs commented that they already re-train every year, as they cann ot verify whether or when employees have been previously trained, in part due to turnover in the workforce. Several SERs, including one that said most workers are re-trained annually, sugg ested that EPA retain the current five year re-training interval, as it is sufficient.

The Panel recognizes that there is value in re -training workers as it serves to emphasize and remind the worker of important safety princi ples. If EPA proposes an annual re-training requirement the Panel recommends that EPA consid er flexibility for less frequent training for small entities, e.g., entities with less than 10 employees that ha ve written documentation of the following: 1. no worker turnover 2. no new or different pesticide applicat ion information from previous years 3. previous training of workers and handlers.

9.4.3 Elimination of Grace Period for Worker Training

The current WPS requires pesticide safety traini ng for agricultural workers but allows them to work up to five days before receiving the full trai ning if they are given a shorter, basic training. EPA is considering eliminating this grace period for full traini ng. The current allowance for a grace period was added primarily because at th e time trainers were scarce and no training materials existed. Now these limitations have la rgely been addressed. Elimination of the grace period would effectively eliminat e the basic training requirement.

Several SERs indicated that the grace period allo ws flexibility in work schedules and should not be eliminated. The Panel recommends that EPA carefully weigh th e potential burden and consider flexibilities for small entities. EPA s hould consider programmatic flexibilities for small entities such as the Agency working with the st ates to increase use of training verification programs to reduce the need for unnecessary re-training and use of the grace period.

9.4.4 Shower Facility for Handlers

EPA is considering a requirement that employers of pesticide handlers ma ke available a shower facility for their use. A few SERs said that when showers are available that employees do not use them. Several SERs commented that a shower facility would be very expensive, with some suggesting that the benefits would not be justified.November 3, 2008

28 In light of SER comments, the Pa nel recommends that EPA limit consideration of shower facility requirements to establishments with permanent pe sticide mixing/loading sites. Such a limitation would eliminate the costly requirement for many smaller entities, and limit it to establishments where pesticide use and potential for exposure is likely to be highe r. Also, establishments with permanent pesticide mixing/loading sites would pot entially have a lower incremental cost of adding a shower facility at that site, since su ch sites typically alre ady have running water.

9.4.5 Minimum Age for Certified Applicators and Those Applying RUPs Under Their Supervision

Currently there is no federal minimum age requirement to become certified as a commercial applicator or private applicator , or for individuals to apply RUPs under the supervision of a certified applicator. EPA is considering a propo sal to require a minimum age for each of these categories of applicators. The Agency’s concerns for younger applicators includes their increased vulnerability to the adverse effects of pesticides, potentially lower level of competence in applying pesticides, as well as potentially poorer judgment and le vel of responsibility.

SERs were not in agreement on this potential proposal. Two SERs suggested no minimum age for commercial certification, as long as they can pass the examination. One SER suggested a minimum age of 14 for commercial applicators. Several SERs suggested a minimum age of 18 for all categories. A few SERs suggested 18 as a minimum age, with lower ages for family members of the employer. A few other SERs suggested 15 or 16 as the minimum on farms.

Given the SERs’ comments, the Panel recomm ends that EPA consider a minimum age requirement of: 18 for commercial applicators; 18 for hired private applicators and 16 for family members; 18 for individuals appl ying RUPs under the supervisi on of a commercial applicator; and 16 for those applying RUPs under the superv ision of a private applicator. Also, based on SER comments on the cost of replacing current younger applicators, the Panel recommends including a grandfather clause to allow currently certified privat e and commercial applicators to retain their certification after any mini mum age requirement becomes effective.

9.4.6 Communication Method Between Cert ified Applicator and Individuals Applying RUPs Under Their Supervision

The current Certification rule allows non-certified app licators to apply RUPs “under the direct supervision” of a certified a pplicator, but does not specif ically require a means of communication between the supervising certified a pplicator and the superv ised applicator during the application. EPA is consider ing a proposal to require that a means of instant communication be available during such applications.

Several SERs indicated that a means of communica tion is necessary and/or desirable, while two cautioned that in some remote areas, communicati on devices do not always work well. One SER suggested that communication may not be necess ary with proper training, and another said a distance requirement could replace a communication requirement.November 3, 2008

29 The Panel agrees with the majority of SER comments that there should be communication capability between certified applicators and those under their supervision during RUP applications. The Panel recommends that EPA co nsider proposing a requir ement that a means of communication between certified applicators and individuals applying RUPs under their supervision be available and em ployed during RUP applications.November 3, 2008

30 

## Appendix A

List of Materials EPA shared with Potential Small Entity Representatives (June 2008)

• Fact Sheet: What Small Entities Should Know About the Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Act

• Fact Sheet: What Potential Small Entity Re presentatives Should Know About the Small Business Advocacy Review Panel Process

• Power Point presentation including:

o Guidance for SERs

o Introduction to Pesticide Worker Safety program

o Background and regulatory history, includi ng overview of ex isting regulations

o Rationale for revising these regulations

o Overview of proposals under consideration

o Regulatory flexibility options for small entities

• Industry Sectors, Definitions & Number of Small Entities Potentially Affected by Proposed Amendments to the Worker Protection Standard and Certification of Pesticide Applicators Rule

• List of Potential Small Entity Representatives

• Questions for Potential Small Entity Representatives

• GAO Report: Pesticides: Improvements to En sure Safety of Farmworkers and Their Children

• Pesticide Worker Safety – National Program Assessment Gaps in Protections from current Worker Prot ection Standard and Cer tification of Pesticide Applicators Rule



## Additional Materials the SBAR Panel shared with Small Entity Representatives (September 2008)

• Power Point presentation (revised)

• List of Small Entity Representatives (updated)

• Questions for Small Entity Representatives (revised)November 3, 2008

31 

## Appendix B
Written Comments Submitted by Sm all Entity Representatives

(See separate file)